Monday, November 24, 2008

New FMLA Regulations: What do they mean to notice and designation obligations to employees?


Administration of FMLA leave probably causes more headaches for HR professionals than any other facet of their jobs. As if the FMLA is not complex enough, the new regulations radically revamp the notice and certifications processes for employers to follow when an employee seeks FMLA leave. The following summarizes these new responsibilities.

Required Postings and Policies

All covered employers who are required to post the prescribed FMLA notice in the workplace, even if they do not have any eligible employees. Employee handbooks will still have to contain FMLA policies. Companies that do not have a handbook, however, will be required to deliver a written FMLA notice at the time of hire. This written notice is separate from the FMLA posting discussed above.

The Eligibility Notice

Under the current iteration of the FMLA, employers only have one designation requirement to employees seeking FMLA leave – Form WH-381 – which is the employer’s response to an employee seeking FMLA leave. The new regulations break this process into two steps, requiring the use of several different documents. After January 16, 2009, old Form WH-381 will no longer be valid and should not be used.

Under the new regulations, when an employee requests FMLA leave, employers must notify employees of their eligibility to take FMLA leave. Employers must provide this notice of eligibility within five business days of the employee’s request for leave or the employer’s other notice of the need for leave, absent exigent circumstances. If an employer is going to seek medical certification for the leave, the employer can provide a copy of the medical certification form along with the eligibility notice. Additionally, the eligibility notice accomplishes the following:

  1. It tells the employee the date the leave was requested and the employer’s understanding of the reason supporting the leave.
  2. It tells if the employee is eligible to take FMLA leave, and if not, why.
  3. For eligible employees, it gives a date certain for the employee to return any requests documentation for the leave, such as a medical certification.
  4. It discusses arrangements for payment of health insurance premiums while on leave, the use of concurrent paid leave, whether the employee is considered a “key employee”, and any requirements for periodic status reports.
  5. It gives the employer’s chosen method for calculating the FMLA leave year.

Eligibility is determined, and this notice must be provided, at the beginning of the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period. All FMLA absences for the same qualifying reason in the same FMLA year are considered a single leave, and the employee maintains eligibility as to that reason during the entire 12-month period. 

If an employee is eligible for FMLA leave, at the same time an employer provides the eligibility notice the employer must also provide a written notice of “Rights and Responsibilities” under the FMLA. This notice details the specific expectations and obligations of employees under the FMLA.

The old form WH-381 (which was optional, but preferred), will be replaced by a new, mandatory WH-381. The new WH-381 encompasses both the eligibility notice and the “Rights and Responsibilities” notice. The new forms are already available as Appendices C & D to the new FMLA regulations (at pp. 191-193).

The Designation Notice

Once an employer has received sufficient information to determine whether an employee’s leave is covered by the FMLA, the employer must notify the employee within five business days that the leave is designated as FMLA leave, absent exigent circumstances. Note that the five business days is a ceiling, not a floor, and employers can provide the designation notice sooner, or even concurrently with the eligibility notice, if the employer has sufficient information available to do so. A copy of the designation form is available as Appendix E to the new FMLA regulations (at p. 194).

The designation notice tells employees one of five things:

  • The leave is approved;
  • More information is needed to determine if the leave can be approved;
  • The leave is denied;
  • The FMLA does not cover the leave request; or
  • The employee has exhausted his or her FMLA leave entitlement for that 12-month period.

If the leave is approved, the employer must designate how much leave is expected to be taken, whether paid leave will be taken concurrently with the FMLA leave, and whether a fitness-for-duty certification will be required before the employee will be permitted to return to work.

If more information is necessary for an employer to make a determination, the employer must advise either what information is needed and give the employee at leave seven calendar days to provide it, or notify the employee that a second or third medical opinion, at the employer’s expense, is required. If an employee fails to meet these requests, the employer can then deny the FMLA leave.

In considering whether to approve an FMLA leave, employers can consider, in addition to the employee’s medical certification, any information received during an ADA interactive process or an employee benefit program.

The new regulations permit retroactive notice if the employer fails to provide timely notice and the delay does not cause employee harm or injury. If, however, an employer fails to provide a written designation notice, the new regulations make clear that such failure can be considered “interference” with an employee’s FMLA rights, for which the employee can seek damages included “any other relief tailored to the harm suffered.”

What this means for you

These new regulations provide a fundamental change in how employers will manage FMLA leave requests. The process is now bifurcated, splitting eligibility and designation. It eliminates the problems employers faced in having to conditionally certify leave as FMLA leave before having all of the information necessary to make a proper determination. Coupled with the new medical certification rules, employers will have much greater access to information in making FMLA decisions. While these regulations are largely a benefit to employers, they do pose significant new requirements with which employers must comply. It is incumbent on all HR professionals to learn these new rules and be prepared to implement them on January 16, 2009.

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